Opinion
Civil Action No. 05-313 (CKK) (RMC).
March 13, 2005
ORDER
Petitioners are unnamed persons from as many as forty-two countries who are being held at the Guantanamo Bay Naval Base ("GTMO") in Cuba, including "every detainee . . . whom the United States has not officially confirmed to be in its custody by disclosing his or her identity and who has not yet filed a petition for habeas corpus." Petition for Writ of Habeas Corpus ("Petition") ¶ 8. Petitioners seek a temporary restraining order ("TRO") to prevent their removal from GTMO to another detention facility in a foreign country because such a removal could have the effect of denying them access to U.S. courts for review of their detainment status and also potentially expose them to interrogation techniques and treatment that would be contrary to the laws of the United States. The respondents have been served but have not responded.
This petition for a TRO is before the undersigned as the emergency motions judge for the weekend. It was filed on Sunday, March 13, 2005, at 1:39 p.m., one day after the undersigned issued a TRO in a separate case involving named individuals being held at GTMO. See Abdah v. Bush, No. 04-1254 (HHK) (RMC), slip op. (D.D.C. March 12, 2005).
BACKGROUND
The Petitioners' underlying case is one of many habeas corpus petitions filed in the District Court for the District of Columbia on behalf of GTMO detainees after the Supreme Court in Rasul v. Bush held that "the federal courts have jurisdiction to determine the legality of the Executive's potentially indefinite detention of individuals who claim to be wholly innocent of wrongdoing." 124 S. Ct. 2686, 2699 (2004). The Government filed motions to dismiss or for judgment as a matter of law in opposition to many of these habeas petitions. Judge Joyce Hens Green, who had been designated to decide common issues of law and fact in eleven of these cases, granted the motion in part and denied it in part. In a separate case, Judge Richard Leon granted the motion in its entirety. The cases before Judges Green and Leon have been fully briefed in the D.C. Circuit Court of Appeals and are under submission.
In re Guantanamo Detainee Cases, 2005 WL 195356 (D.D.C. Jan. 31, 2005), appeal docketed, No. 05-8003 (D.C. Cir. ___).
Khalid v. Bush, 2005 WL 100924 (D.D.C. Jan. 19, 2005), appeal docketed, No. 05-5063 (D.C. Cir. ___).
This particular petition was filed on February 10, 2005, after the rulings by Judges Leon and Green. Prior to any answer or dispositive motion by respondents, the Petitioners filed a Motion to Compel Adherence to Established Procedures Applicable in Guantanamo Habeas Petitions ("Motion to Compel") on March 3, 2005, asking the Court to require the Government to, inter alia, "confirm that Petitioners will not be moved to any other detention facility without advance written notice to counsel." Motion to Compel at 2. Counsel argues that knowledge of "where Petitioners are being detained . . . is essential for counsel to be able to correspond and meet with their clients but also is critical so that counsel can protect Petitioners' rights." Motion to Compel at 4. They seek "to be placed on the same footing as the other habeas petitioners seeking relief from the courts in these cases." Id. at 5.
On March 11, 2005 the New York Times ran a story describing a proposal by the Pentagon and Secretary of Defense Donald Rumsfeld to transfer more than half of the GTMO detainees to prisons in other countries. Fearing that "respondents could transfer Petitioners from [GTMO] without allowing Petitioners the opportunity to contest the legality of such transfer," Petitioners filed this application for a TRO pursuant to Rule 65 of the Federal Rules of Civil Procedure to prevent transfer, "except to free them, until the outstanding [Motion to Compel] is decided or for ten (10) days, whichever is less." Petitioners' Memorandum and Points and Authorities in Support of Application for Temporary Restraining Order ("TRO Motion") at 1. Petitioners' counsel contends that "covert transfers appear to have actually begun this weekend, despite habeas counsels' repeated request for information about the status of their clients. . . ." Id. at 2. Specifically, counsel in a separate habeas case, Kurnaz v. Bush, No. 04-1135 (JDB) (D.D.C.), reports that Mr. Kurnaz appears to have been moved from GTMO to a U.S. military base in Turkey. See TRO Motion, Exh. A (Declaration of Gitanjali S. Gutierrez). "Petitioners also base their application for a temporary restraining order on the same immediate, irreparable harm that was the subject of the application granted yesterday in a related Guantanamo detainee habeas case, Abdah v. Bush, No. 04-1254 (HHK) (RMC)." Id. at 3.
See Petitioners' Emergency Application for Temporary Restraining Order, Exh. B (Douglas Jehl, Pentagon Seeks to Transfer More Detainees from Base in Cuba, The New York Times (March 11, 2003)).
LEGAL STANDARDS
The purpose of a TRO is to preserve the status quo and prevent irreparable harm until a hearing can be held. See Granny Goose Foods, Inc. v. Bhd. of Teamsters, 415 U.S. 423, 439 (1974). In considering a request for a TRO, the court must examine whether: "(1) there is a substantial likelihood plaintiff will succeed on the merits; (2) plaintiff will be irreparably injured if an injunction is not granted; (3) an injunction will substantially injure the other party; and (4) the public interest will be furthered by an injunction." Davenport v. Int'l Bhd. of Teamsters, AFL-CIO, 166 F.3d 356, 360 (D.C. Cir. 1999).
Where the balance of hardships tips decidedly toward the movant, it will "`ordinarily be enough that the [movant] has raised questions going to the merits so serious, substantial, difficult and doubtful, as to make them a fair ground for litigation and thus for more deliberative investigation.'" Washington Metro. Area Transit Comm'n v. Holiday Tours, Inc., 559 F.2d 841, 844 (D.C. Cir. 1977) (citation omitted). "An order maintaining the status quo is appropriate when a serious legal question is presented, when little if any harm will befall other interested persons or the public and when denial of the order would inflict irreparable injury on the movant. There is substantial equity, and need for judicial protection, whether or not movant has shown a mathematical probability of success." Id. at 844.
ANALYSIS
In issuing a TRO in Abdah v. Bush earlier this weekend, the undersigned found that certain "Petitioners have adequately shown that they could face continued detention at the request of the United States, or as a condition of their release from GTMO set by the United States, in any country to which they might be transferred. . . ." Abdah v. Bush, No. 04-1254 (HHK) (RMC), slip op. at 5 (D.D.C. March 12, 2005). As in Abdah, the Court finds that a transfer of the Petitioners here to a detention facility outside the jurisdiction of U.S. courts — courts that are actively reviewing the constitutionality of that very detention — would inhibit the right of access to our court system guaranteed by Rasul and could irreparably harm the Petitioners. Where the analysis of this application for a TRO differs, however, is in the determination of immediacy.
As the Court stated in Abdah, there is no doubt that the district courts have jurisdiction over the Petitioners' habeas corpus petitions. See Rasul, 124 S. Ct. at 2698. Further, "the All Writs Act, 28 U.S.C. § 1651(a), empowers a district court to issue injunctions to protect its jurisdiction. . . ." SEC v. Vision Communications, Inc., 74 F.3d 287, 291 (D.C. Cir. 1996).
In Abdah, the "Court pause[d] over whether the Petitioners have shown the immediacy of potential harm that justifies a TRO before the Government or its attorney could be heard." Abdah, slip op. at 8 (citing FED. R. CIV. P. 65(b)). The Court considered the representation of co-counsel in Abdah, appearing in the instant case, that the Government may be intending to transfer detainees. Id. It also considered the policy and procedures for transfer determinations and found that:
under these circumstances, the only way that anyone could know that a transfer is about to happen, i.e., be "immediate," is if one is within the chain of command within the federal departments that consult on such matters or if there were information revealed sotto voce to a reporter. Based on the totality of the circumstances, the Court finds that the Petitioners face a risk of irreparable harm that is sufficiently immediate to warrant temporary relief.Id. What the record contained in Abdah, and what is conspicuously absent here, is sufficient evidence that any of the Petitioners in the instant case could be at risk of an immediate transfer and continued indeterminate detention. See id. at 5.
Here, counsel for petitioners can only point to a newspaper article, unnamed sources, and the transfer (for further detainment or for release) of a single habeas petitioner in a different case. There are no facts that indicate that any of these particular Petitioners are at risk of transfer. The extraordinary relief of a TRO to preserve the status quo until a hearing on a preliminary injunction can be held is inappropriate without a showing of imminent harm.